PEOPLE v. REDIC

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Appellant, v. Terrell Shavez REDIC, Defendant and Respondent.

No. B119125.

Decided: December 03, 1998

Gil Garcetti, District Attorney, George M. Palmer, Head Deputy District Attorney, Dave Campbell and Patrick D. Moran, Deputy District Attorneys, for Plaintiff and Appellant. Michael P. Judge, Public Defender, Albert Menaster, Michael Coghlan and Alex Ricciardulli, Deputy Public Defenders, for Defendant and Respondent.

Terrell Shavez Redic was charged with possession of cocaine for sale after he had been subjected to a search by Pomona police officers.   He challenged the legality of the search and moved to suppress the evidence obtained therefrom.   The trial court granted his motion and dismissed the case.   The People appeal the order of dismissal.   In light of the Supreme Court's recent decision in People v. Reyes (1998) 19 Cal.4th 229, 239, 78 Cal.Rptr.2d 295, 961 P.2d 984, which eliminated the reasonable suspicion requirement for warrantless searches of parolees subject to search conditions, we conclude that the search was proper and reverse the order of dismissal.

BACKGROUND

In May or June 1997, Pomona Police Officer Neaderbaomer stopped Redic after the latter sped through a residential neighborhood.   The officer recognized Redic's two passengers as “subjects being involved in narcotics activity.”   After determining that the car had not been stolen, Officer Neaderbaomer “had a short discussion with Mr. Redic about narcotics activity in that area” and then released him.

At approximately 1:30 a.m. on September 2, 1997, Officer Neaderbaomer was on patrol when he saw Redic conversing with two men in the parking lot of a donut shop.   He knew that Redic had recently been released from prison and asked if he was on parole.   Redic replied that he was and told the officer the name and location of his parole agent.   Concerned that Redic might be carrying a concealed weapon, Officer Neaderbaomer patted him down and found a pager and some wadded up currency in his pants pockets.   The officer then radioed for a narcotic sniffing dog and had Redic sit on the cement portion of the parking lot for several minutes in order to “transfer” his scent to the concrete.

After the police dog had arrived, it sniffed the area where Redic had been sitting and signaled that it had detected the scent of narcotics.   While the dog was conducting its search, a supervising police officer tried without success to telephone Redic's parole agent to obtain permission to search him.   However, he was able to contact a parole agent from a different office who authorized a full body search of Redic.   Upon conducting a strip search of Redic at the police station, the officer recovered some five grams of cocaine base.

Redic moved to suppress the cocaine, the money and the pager, arguing that Officer Neaderbaomer did not have reasonable suspicion to conduct the initial pat-down search for weapons.1  The prosecutor argued that since the parole agent authorized the search, the evidence would have inevitably been discovered.   In granting the motion to suppress, the trial court stated that it was “focusing on the lawfulness of the pat-down search for weapons of the defendant.   The court is of the opinion that this officer already had the opinion when he approached the defendant that there was some narcotic activity engaged in by the defendant, and that during the course of the pat-down he further confirmed that suspicion.  [¶] But the initial pat-down search, the court is of the opinion, was improper.   I think the witness did not delineate such facts that would justify his conduct under those circumstances as set forth.”

DISCUSSION

 At the time of the search and the suppression hearing, it was settled law that a parolee subject to search conditions could be searched upon reasonable suspicion that he had violated the law or a condition of his parole.  (People v. Burgener (1986) 41 Cal.3d 505, 533, 224 Cal.Rptr. 112, 714 P.2d 1251.)   Recently, however, our Supreme Court has disapproved the Burgener test and held that no particularized suspicion is required to conduct such search.  (People v. Reyes, supra, 19 Cal.4th at p. 239, 78 Cal.Rptr.2d 295, 961 P.2d 984.)  “Because of society's interest both in assuring the parolee corrects his behavior and in protecting its citizens against dangerous criminals, a search pursuant to a parole condition, without reasonable suspicion, does not ‘intrude on a reasonable expectation of privacy, that is, an expectation that society is willing to recognize as legitimate.’   [Citation.]”  (Id. at p. 236, 78 Cal.Rptr.2d 295, 961 P.2d 984.)   Accordingly, a search of a parolee “is reasonable within the meaning of the Fourth Amendment as long as it is not arbitrary, capricious or harassing.”   (Id. at p. 237, 78 Cal.Rptr.2d 295, 961 P.2d 984.)

1. Retroactivity

 Reyes is silent as to whether it is to be applied retroactively or prospectively.  “In determining whether a decision should be given retroactive effect, the California courts undertake first a threshold inquiry, [seeking to determine] whether the decision established new standards or a new rule of law.   If it does not establish a new rule or standards, but only elucidates and enforces prior law, no question of retroactivity arises.  [Citations.]  Neither is there any issue of retroactivity when [the Supreme Court] resolve[s] a conflict between lower court decisions, or address[es] an issue not previously presented to the courts.   In all such cases the ordinary assumption of retrospective operation [citations] takes full effect.”  (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 36-37, 196 Cal.Rptr. 704, 672 P.2d 110.)

Reyes redefined the expectation of privacy afforded to a parolee subject to a parole search.   Accordingly, for the purposes of our retroactive versus prospective analysis, we view Reyes as announcing a new rule.

“ ‘Whether a judicial decision establishing new ․ standards is to be given retroactive effect is customarily determined by weighing the following factors:  “(a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of retroactive application of the new standards.”  [Citations.]  “It is also clear that the factors of reliance and burden on the administration of justice are of significant relevance only when the question of retroactivity is a close one after the purpose of the new rule is considered.”  [Citation.]  Decisions have generally been made fully retroactive only where the right vindicated is one which is essential to the integrity of the fact-finding process.   On the other hand, retroactivity is not customarily required when the interest to be vindicated is one which is merely collateral to a fair determination of guilt or innocence.   [Citation.]’  [Citations.]”  (Donaldson v. Superior Court, supra, 35 Cal.3d at p. 38, 196 Cal.Rptr. 704, 672 P.2d 110, fn. omitted.)

Search and seizure cases which offer expanded protections under the Fourth Amendment have consistently been found not to be retroactive.   (People v. Helmquist (1984) 161 Cal.App.3d 609, 615-616, 207 Cal.Rptr. 718 and cases cited therein.)   In these cases, the justification for creating such protections is “to deter illegal conduct by law enforcement officials[.]”  (Donaldson v. Superior Court, supra, 35 Cal.3d at p. 39, 196 Cal.Rptr. 704, 672 P.2d 110.)   Thus, retroactive application would not serve such purpose;  instead, it would reward criminals by excluding trustworthy evidence.

In contrast, the reason for the rule change announced in Reyes was to facilitate the state's interests in adequately supervising parolees and protecting the public during their “transition from inmate to free citizen.”   (People v. Reyes, supra, 19 Cal.4th at p. 237, 78 Cal.Rptr.2d 295, 961 P.2d 984.)   Hence, retroactive application of the Reyes rule would further these goals.   Moreover, factor (2), reliance of law enforcement officials on the old standard, would not be affected by retroactive application, and factor (3), the administration of justice, would be minimally affected.   Accordingly, we will apply Reyes retroactively to this case.2  (Cf. Donaldson v. Superior Court, supra, 35 Cal.3d at pp. 38-39, 196 Cal.Rptr. 704, 672 P.2d 110.)

2. Ex post facto violation

 Redic contends that retroactive application of Reyes would violate the ex post facto clauses of the California and United States Constitutions “because it would increase [his] punishment by making his conditions of [parole] more harsh.”   Although ex post facto challenges are “specifically directed to the legislative, not judicial, branch, the same principle applies to judicial decisions.”  (People v. King (1993) 5 Cal.4th 59, 79, 19 Cal.Rptr.2d 233, 851 P.2d 27.)

We disagree with Redic that the Reyes decision results in an increase of his punishment.   The change in the law was not penal in nature.   Application of the rule would not lengthen his parole period nor subject him to additional parole conditions.

Nor can Redic claim that the change was “ ‘ “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue [.]” ’ ”  (People v. King, supra, 5 Cal.4th at p. 80, 19 Cal.Rptr.2d 233, 851 P.2d 27.)   We say this because the Reyes court relied heavily on its earlier holding in In re Tyrell J. (1994) 8 Cal.4th 68, 86, 32 Cal.Rptr.2d 33, 876 P.2d 519, in which the court imposed the same search limitations on juvenile probationers, who, like parolees and unlike adult probationers, may not waive warrantless search conditions.  (People v. Reyes, supra, 19 Cal.4th at pp. 235-238, 78 Cal.Rptr.2d 295, 961 P.2d 984.)   Accordingly, we reject Redic's contention that application of Reyes to his case is constitutionally barred.

3. Application of Reyes

 Reyes 's holding “that particularized suspicion is not required in order to conduct a search based on a properly imposed search condition does not mean parolees have no protection․  ‘[A] parole search could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’   [Citations.]”  (People v. Reyes, supra, 19 Cal.4th at p. 239, 78 Cal.Rptr.2d 295, 961 P.2d 984.)

Redic argues that the search was unreasonably prolonged.   The record does not so indicate.   Officer Neaderbaomer had Redic sit on the concrete slab for only a few minutes.   Thereafter, the narcotics dog alerted to the scent of drugs.   Concurrently, the police officers were trying to locate Redic's parole agent to obtain permission for a strip search.   They eventually contacted another agent, who gave them permission to do so.   Since Redic's detention took no longer than was necessary to effectuate the search, the detention and search was not unreasonably prolonged.   Moreover, given the absence of evidence demonstrating that the search was conducted in an arbitrary or oppressive manner, we conclude that the search was proper.

DISPOSITION

The order of dismissal is reversed.

FOOTNOTES

1.   Counsel for Redic indicated that he had a second theory to argue.   However, the court told him that it would not hear further argument on the motion.   The record does not indicate the alternative theory intended by counsel.

2.   As referenced by Redic in his letter briefs and as stressed by his able counsel at oral argument, Penal Code section 3067 requires that parole eligible inmates incarcerated for crimes occurring on or after January 1, 1997, sign a written consent to be searched without cause, i.e., waive their Burgener right to be free from suspicionless searches.   Prisoners who refuse to sign the consent form lose a day of worktime credit for each day that he refuses to provide the written consent.  (Pen.Code, § 3067, subd. (b).)  Moreover, the prisoner “shall not be released until he or she either [provides the written consent to search] or has no remaining worktime credit, whichever occurs earlier.”  (Ibid.)Comparing the Reyes decision to Penal Code section 3067, Redic argues that Reyes, like Penal Code section 3067, should be applied prospectively.   However, the laws are not comparable.  Penal Code section 3067 was drafted on the premise that the reasonable suspicion standard in Burgener was valid, and therefore a parolee's advanced consent to a search would operate to waive any expectation of privacy that he might have.   In contrast, Reyes completely rejected the idea that parolees have a reasonable expectation of privacy.  (People v. Reyes, supra, 19 Cal.4th at p. 239, 78 Cal.Rptr.2d 295, 961 P.2d 984.)   Consequently, that the Legislature saw fit to require prospective application of Penal Code section 3067 has no bearing on our decision whether to apply Reyes retroactively, and we reject Redic's arguments suggesting otherwise.

MASTERSON, J.

SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.

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